Allowed

Bruhat Bengaluru Mahanagara Palike v. a Girish

Karnataka HC7 Jul 2021RFA/1601/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal filed by the Bruhat Bengaluru Mahanagara Palike against a judgment granting a perpetual injunction to a property owner. The Court set aside the lower court decree, holding that it deprived the municipal authority of its statutory right to demolish illegal structures provided any future action is taken in accordance with law.

What did the court decide?

Appeal allowed; Impugned judgment and decree set aside; Defendant entitled to initiate action only in accordance with law.

Bruhat Bengaluru Mahanagara Palike Vs a Girish — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JULY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M.I.ARUN

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RFA NO.1601 OF 2017 (INJ)

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BETWEEN :

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BRUHAT BENGALURU MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU – 560 002. REP. BY ITS COMMISSIONER … APPELLANT

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(BY SRI.JAGADEESWARA N. R., ADV.)

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AND :

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A. GIRISH S/O A. SHIVAPPA, AGED 39 YEARS, #125, 3^RD CROSS, 7^TH A MAIN ROAD, 2^ND STAGE, VIJAYANAGAR, HAMPINAGAR, BENGALURU – 560 040 ... RESPONDENT (BY SRI.B. ROOPESHA, ADV.)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 05.07.2017 PASSED IN OS NO.3640/2015 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE

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BANGALORE, DECREEING THE SUIT FOR PERPETUAL INJUNCTION.

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THIS RFA COMING ON FOR ADMISSION, THROUGH VIDEO CONFERENCING THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and decree passed by XL Additional City & Sessions Judge, Bengaluru, dated 05.07.2017 in O.S.No.3640/2015, defendant therein has preferred this appeal.

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For the sake of convenience, parties are referred to as per the ranking before the trial Court.

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The plaintiff claiming to be the owner of site bearing No.125, formed by Kalyan HBCS, situated at 2^nd ‘A’ Cross, Hampinagar, Bengaluru City, measuring East to West 52+ 51/2 feet, North to South 30 feet, which includes constructed building consisting of Ground and First floor, bounded on East by: 30 feet Road, West by: Site No.131, North by: Site No.126 & South by: Site No.124 filed O.S.No.3640/2015 against the defendant for perpetual

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injunction restraining the defendant, its officers, agents, servants or anybody claiming under them from interfering with the possession of the plaintiff over the suit schedule property.

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The contention of the plaintiff is that he has constructed the building on the property in accordance with law. The defendant through its officers and employees is interfering with his peaceful possession and enjoyment of the property illegally and are threatening to demolish a portion of the property. Hence, the plaintiff has filed the suit.

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The Defendant is Bruhat Bengaluru Mahanagara Palike (BBMP).

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On service of notice, defendant appeared and filed its written statement contending that the plaintiff had put up the construction of the property in violation of the sanction plan and building bye-laws. Defendant – BBMP is well within its right to demolish such portion of the building, which is not

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in accordance with law and has sought for dismissal of the suit.

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On the basis of the pleadings, the trial Court

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framed the following issues:-

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1. Whether the plaintiff proves that he has put up construction in accordance with sanctioned plan?

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2. Whether the plaintiff further proves that the officials of the defendant Authority have legally made vehement threat to demolish portion of the schedule building as alleged?

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3. Whether the plaintiff is entitled for the reliefs sought for?

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4. What Order or Decree?

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8. The plaintiff examined himself as PW1 and got

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marked documents Exs.P1-P11. The defendant has not examined any witness nor marked any documents.

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9. Based on the pleadings and the evidence let in,

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the trial Court has answered the issues No.1, 2 and 3 in the affirmative and has decreed the suit of the plaintiff by the following order:-

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“Suit is decreed with costs.

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The defendant or its officials or any persons claiming through defendant are

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hereby restrained permanently from interfering with possession and enjoyment of the schedule property.

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Draw decree accordingly.”

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10. Aggrieved by the same, the defendant has preferred this appeal.

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11. It is the contention of the appellant-defendant that the impugned judgment and decree is not sustainable in law. It is contended that the appellant is entrusted with the responsibilities of regulating the construction activities in its jurisdiction and the said construction put up by the plaintiff has to be in accordance with and any deviation will be dealt with in accordance with law by the authorities and the impugned order has the effect of prohibiting the defendant from demolishing any illegal structure put up by the plaintiff and it comes in the way of their statutory duty.

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12. Per contra, the plaintiff justifies the judgment passed by the trial Court and has sought for dismissal of the appeal.

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13. The defendant – BBMP is vested with

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responsibilities to manage the Municipal affairs in the city of Bengaluru. It was established and governed under the provisions of The Karnataka Municipalities Act, 1964. Presently it is governed under the provisions of the Bruhat Bengaluru Mahanagara Palike Act, 2020. The said enactment gives it necessary powers to oversee the construction activity within its territorial jurisdiction. If any construction is put up in violation of law, the defendant has the right and also the responsibility of removing the illegal construction or regularizing the same if permitted in accordance with law. The Karnataka Municipalities Act, 1964 under which the defendant- BBMP used to act earlier and the Bruhat Bengaluru Mahanagara Palike Act, 2020 which governs its action presently contains the necessary provisions, which prescribes the method in which the defendant has to act. If there is any violation of the same or abuse of process of law by the employees of the defendant, the plaintiff is always at liberty to initiate appropriate proceedings. However, the order passed by the

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trial Court in O.S.No.3640/2015 restraining the defendant permanently from interfering with possession and enjoyment of the schedule property by the plaintiff has effect of preventing the defendant from discharging its duties under BBMP Act in case the plaintiff were to violate the provisions of law in putting up the construction.

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14. In the course of arguments, the learned counsel for the plaintiff fairly submitted that he has filed the above suit only because certain officers of the defendant harassed him and interfered with the enjoyment of the suit schedule property even when the construction is put up in accordance with law and he has no objection for the defendant to inspect and to take appropriate action if there is violation of law as per the procedure established by law.

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15. The learned counsel for defendant also submitted any action that will be initiated would be in accordance with law and prayed for setting aside the judgment and decree passed in O.S.No.3640/2015.

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16. Having regard to the facts and circumstances and submissions made by learned counsel on both sides, it would be appropriate to set aside the judgment and decree passed in O.S.No.3640/2015 by holding that any action to be initiated by the defendant against the plaintiff in respect of suit schedule property, will be only in accordance with law. Hence, the following order:-

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ORDER

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i. Appeal is allowed.

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ii. The judgment and decree passed in O.S.No.3640/2015 dated 05.07.2017 by XL Additional City Civil & Sessions Judge, Bengaluru, is hereby set aside.

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iii. The defendant or its officials or any person claiming through defendant is entitled to initiate any action against the plaintiff in respect of suit schedule property only in accordance with law.

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No orders as to costs.

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Sd/- JUDGE

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Bruhat Bengaluru Mahanagara Palike v. a Girish

Case brief

What is this about?

What did the court decide?

Bruhat Bengaluru Mahanagara Palike v. a Girish

Case brief

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What did the court decide?

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